From The War Room To The Court Room–The Playing Field Leveled

At least that is the theory. The FLDS community had no chance of withstanding Texas’ military style onslaught of its community almost two weeks ago–and to their credit they cooperated with Texas’ authorities, thereby avoiding bloodshed; however, now the law is supposed to level the playing field and allow the FLDS mothers and fathers the same ability as Texas to make their case in a court of law, rather than at the barrel of an automatic weapon or riding on an armored personnel carrier. We will see how that plays out today.

I have not seen anything suggesting the hearing(s) will actually be televised. Of course, I wish they would–but it doesn’t look like that will happen. I am certain, however, that the various media sources will provide coverage as best they can.

The judge must make a key decision early on in the hearing: whether due process requires each child to have a separate hearing. Child Protective Services attorneys have said they intended to present a single case covering all of the children – an approach that attorneys for the parents are likely to reject.

Guy Choate, a San Angelo attorney helping to coordinate volunteer attorneys, predicted the cases will be handled en masse.

“It’s clearly impossible to have 416 hearings,” he said. “These kids could turn 21 by the time we finished.”

Well, Texas has made its legal bed, and now it’s time to lie in it. No one forced Texas to coordinate a military style assault on the FLDS community and remove every single child. I’ve posted links to the various Texas Family Law code sections, see here and here. I haven’t read anything in those code sections that allows for one en masse hearing just because Texas jumped the gun and arrested everyone in sight. I think fundamental due process requires a separate hearing for each and every child and the parents of those children. If Texas is going to argue all the children are abused and the parents abusive, then due process requires the parents be allowed to present evidence to rebut Texas’ legal claims.

Today, the Tom Green County Courthouse will be the setting for a historic hearing on the children’s welfare. The state will argue parents belonging to the Fundamentalist Church of Jesus Christ of Latter Day Saints put them at risk through physical abuse and socializing them into accepting early, illegal marriages.

The parents will resist the state’s attempt to make a single argument that envelops all the families, and defend a lifestyle they say is aimed at raising moral, pure and beloved children.

“We want our families back and we want to be together again,” said Nancy, 19, who said she spent 11 days in the shelter with a diabetic younger sister. “We want our children home.

Again, one of the critical determinations will be the judge’s decision on individual hearings or not. The article also notes Texas has been changing its laws in response to the arrival of the FLDS community:

“The overwhelming majority of people in Texas want to prevent little girls from being forced to be married and forced into sexual relationships,” said sponsoring state Rep. Harvey Hilderbran. “Our laws needed to be updated even if this group hadn’t come to Texas.”

The changes raised the marriage age to 16, outlawed first cousin and stepparent marriages, made it a crime to officiate at illegal marriages and to enter a polygamous union.

“This isn’t a part of Texas values, having polygamy, bigamy and forcing marriage of teenage girls,” Hilderbran said. “We didn’t invite them to come here, but if they’re going to come here, they’ve got to obey Texas law.”

What about Texas–is it also obligated to comply with its own laws? Will the court decide to afford each of these children and their parents an individual hearing as contemplated in the statutes passed by Texas’ legislature? One way the court could really cut to the core of the real issues involved–allegations of child abuse–would be to require individual hearings for each child. That way, the state would likely be forced to drop the majority of its wild claims and focus solely on those specific cases where it thinks it can prove the child abuse. This is how it should be.

SAN ANGELO, Texas – There has been little in the ringing voice or confident expression of 51st District Judge Barbara L. Walther that hints she is at the center of a firestorm, although this is a moment that could define her career.

The fate of 416 children seized from the Fundamentalist Church of Jesus Christ of Latter Day Saints’ ranch is in her hands.

Today, Walther must reign in the first major court hearing of the biggest custody case in Texas history, a mammoth undertaking bringing together hundreds of attorneys, parents, and onlookers for arguments over keeping the children in the state’s care.

“We need to handle these cases on an individual basis, family by family, parent by parent,” Walther said in court earlier this week, gesturing to several gaggles of attorneys. “I’m not going to adopt any hard and fast rules. I want your input.”

This last quote is interesting. If accurate, it could signal the judge’s thinking on whether to consider each case on its individual claims and allegations or whether to give Texas a free pass and lump all these children together.

“This is a classic case of government overreaching,” said Jeff Blackburn, lead counsel for the Innocence Project for Texas. “The amount of human and emotional damage [from those warrants] is way out of proportion to what the court said it was trying to accomplish.”

Still, around these parts of west Texas, folks say Walther will give a “fair shake,” Moore said. “When you come out of the court – win or lose – you know you had a fair trial.”

That’s all that anyone can ask–a fair trial.

In the Lone Star state, judges are elected to four-year terms. In 1992, Walther beat out favorite Robert Post for a seat on the state bench, becoming the first Republican elected to the job in that district. Since then, she has run unopposed. This is the last year of her fourth term and she is expected to run unchallenged again.

The judge has an exceptional record, according to west Texas lawyers. During the past 14 years, records show the Texas appellate court has reversed only a handful of her decisions.

As the only judge for the 51st District, which encompasses many small towns and a wide rural area, Walther has handled all kinds of cases, including child custody matters and criminal prosecutions.

Post, the San Angelo attorney Walther defeated for the judge’s job in 1992, said she will not be a “rubber stamp” for the state. “She’ll make them prove it up,” he said.

No matter how she rules in the FLDS case, or cases, Walther can expect her decisions to be challenged on appeal. “I guarantee she’s been studying the law,” said Post. “She’s got the whole country looking at her.”

Another good sign–that she won’t just rubber stamp the state’s case; however, thus far she seems to have given the state pretty wide latitude in approving the initial warrants and the raid itself.

State officials said while much attention has been focused on the desire to “produce” Sarah — the mysterious child bride whose allegations of abuse prompted the raid early this month — that’s not the issue that will unfold today in court.

“I think some people have really focused on that (Sarah) but the reality is that her phone call is the reason we went out there, but it was not the reason for the removals,” said Greg Cunningham, spokesman for the Texas Department of Family and Protective Services.

“The removals happened based on what we saw out there.”

Well, its no surprise Texas is backing away big time from the initial telephone call–since they can’t find the young girl, or her husband. FLDS attorneys have claimed all along the initial call was a hoax, and thus far the evidence appears to favor that claim:

Attorney Rod Parker, acting as spokesman for the Fundamentalist LDS Church, said Texas officials know there is no “Sarah.”

“How can they think they have her inside with the other children when what they really have is uncorroborated and refuted?” said Parker. “Do they think they have the wife of Dale Barlow? Because that’s who they say she is.”

The three-day raid on the YFZ Ranch was based on allegations from phone calls to a family shelter hotline from a 16-year-old girl named Sarah who said she was married to Barlow. The caller said she was pregnant and was being physically and sexually abused by the man who she said had six other wives.

Texas Rangers traveled to Utah last weekend to interview Barlow, 50, who lives in Colorado City, Ariz. He insists he doesn’t know the girl and has never been to the Texas ranch. He was not arrested.

“That is because she’s not the wife of Dale Barlow, because she doesn’t exist,” Parker said.

When the custody hearing gets under way today, attorneys with the legal affairs division of the state agency will argue to keep the children in state custody — regardless of whether they are able to prove the allegations they say were lodged by Sarah.

“What we are going to have to prove to the judge is that these children have been abused and are in danger of further abuse if they are returned to their homes,” Cunningham said. “In doing that, it will not just be CPS trying to prove this, it will be a lot of parties in the courthouse.”

The relatively small Tom Green County Courthouse in San Angelo cannot handle the anticipated crowd, so in addition to the setting where the action will unfold, authorities have set up a teleconferencing site at City Hall to accommodate interested parties, mainly the media. The hearing is expected to last all day and perhaps spill into Friday.

Although sexual abuse is front and center at the case that led to the raid, Cunningham would not comment specifically on whether any medical exams have been performed to determine evidence of sexual activity among the young FLDS women and girls.

“Generally, that evidence is something we would secure as part of our investigation,” he said.

The point about the medical examinations is also critical. The results of those tests should provide some very relevant and important evidence in the case.

The Grits For Breakfast Blog also has a good post today on the hearing and the troubling questions that remain unanswered in this case.

CNN’s coverage includes quotes from some of the FLDS women. Larry King last night had fascinating video of the FLDS ranch which they toured along with interviews of several FLDS mothers:

The YFZ ranch is owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FDLS), a Mormon offshoot that practices polygamy. Followers say the accusations of sexual abuse are false.

“This, what is happening to them, is the worst abuse that they have ever had,” said Esther, one of three FDLS mothers interviewed by CNN’s Larry King on Wednesday night. “I just don’t understand why you would want to just come right into our community and do this.”

The often-tearful mothers pleaded to be granted access to their children.

“Our children need us,” said one of the women, only identified as Sally, “and they have been torn from us illegally with officers with guns.

Now that we have arrived in the court room, my hope is that the issues can be narrowed to specific abuse allegations, supportable by specific evidence–if it exists. And, if it exists, then those children should absolutely be removed from their homes and placed in protective care. The parents, should also be prosecuted, again if there is evidence of specific child abuse; however, if the evidence is insufficient to establish abuse for each of these 400 plus children, then the court should equalize this playing field and send these children back home to their mother and fathers. And, Texas should go back to the drawing board and figure out how to deal on a case by case basis with any abuse allegations without the wholesale disruption of these families–not to mention the ridiculous tying up of state resources in trying to prove an unprovable case.

By the way–does anyone else find it ironic that the county where this court house sits is called Tom Green County? 😉

Share this:

Like this:

Related

21 Responses to “From The War Room To The Court Room–The Playing Field Leveled”

You’re doing yeoman’s work on this issue, Guy. Thanks for posting the links on today’s looming court drama.

You make it sound like the judge is a straight shooter, but I was appalled at media references I read last week alleging that that she was telling jokes in open court at the expense of FLDS parties that were present in court. Judges I have worked with would never engage in that sort of behavior.

If the media reports are true (and I hope they are not) it fatally compromises the appearance of fair play by the one person in this case — the judge — who must be unbiased in order to safeguard due process. Let’s hope all parties, parents and children as well as the State of Texas, are given a fair shake in court today.

Thanks for that update on the judge. I had not seen those media reports. But, like you I hope it was not true. Such activity would indeed vitiate the due process of all involved. Should be an interesting day today.

Thanks yet again, Guy. You’re the first one I turn to for the news these mornings. I may continue to check sources beyond those you cite for more detail and other views, but you structure each day’s news for me, and I’ve never yet found material that caused me to change the impression I form each morning while reading your blog.

Thanks as always for your links. Yeah, King is not the best–he’s getting up there. But, at least he his able to hide his disdain (if he has any) for the FLDS community better than Anderson Cooper and the rest of the CNN reporters covering this story.

Curious now that they can’t find Sarah, Texas doesn’t think she is any longer necessary. Funny thing eh?

I would not be surprised if some of the planning for this operation occurred among operants in a common lodge or church first.

I’ve experienced first-hand the parochial attitudes among people “in-charge” in small-town South Texas.

When I was a missionary there, me and my companion were once stalked by a deranged person that we had been teaching. One night, he climbed through our attic and tried to break into our bedroom while we were sleeping. Despite our pleas for assistance from this seeming attempted murder, the police officer in charge told us “you boys best be getting on your way out of town, your weird religion just brings-out the worst in people”. And that was that.

And that is only the beginning of bizarre small-town South Texas politics stories I coulod recount.

As I see the Southern Baptists line-up to bus and foster all these estranged children, I can’t help but imagine imposing my own understanding of the way things work down there upon these officials.

[quote]
In Texas, state Attorney General Greg Abbott wasn’t so concerned about finding the caller named Sarah.

“It’s irrelevant if the 16-year-old can and will be found,” Abbott told “Good Morning America” today.

He said Child Protective Services “believe they have significant evidence” that abuse occurred and that the children would be in danger if they were returned to the ranch.

Abbott hinted that additional charges could be brought against sect members because women who gave television interviews in recent days “basically admitted to living in a state of bigamy… That also would be a ground for legal prosecution here in the state of Texas.” [/quote]

The criminal prosecutions are going to be based on polygamy and not abuse.

I might agree with this tactic as a clever attempt to fork the FLDS, and force them to delay polygamous marriages to age 18:

Either the men say they are married to the 16 year olds, thus opening them to a charge of bigamy.

Or the men deny a legal marriage and are charged with statutory rape.

Clever, but dangerous, particularly since they used abuse as the excuse to enter the compound. If the FLDS men are smart they will own up to marrying these girls and challenge the state of Texas to bring bigamy charges. Then there will be an actual showdown over the legitimacy of the laws against bigamy. (Besides, better to go to jail for bigamy than for rape).

Now I expect that the bigamy laws will be upheld, but there will be alot of grief about the manner in which the evidence was gathered.

That is what disturbs me the most about the above quote:

[quote]
Abbott hinted that additional charges could be brought against sect members because women who gave television interviews in recent days “basically admitted to living in a state of bigamy… That also would be a ground for legal prosecution here in the state of Texas.” [/quote]

This is exactly why the FLDS men and women are so reluctant to talk to the press, and this strikes me as an attempt to intimidate the men and women of the FLDS into silence.

Even threaten them with not being able to show up in court and challenge the states case because to do so would incriminate themselves under the bigamy statute. This seems a very highhanded way to essentially steal children away from families with a religion people don’t like.

Thank you for your blog and your updates on this heartbreaking story. I can’t believe this is happening in America. How did we allow our government to become so brutal? This is totally shocking. I pray for all involved.

I certainly hope that wisdom and justice will prevail in all of this. However, the Sect did themselves no favour with the public in their interview with Larry King. First off, where were the fathers? Why couldn’t they even answer that simple question? Of course it’s relevant here as the children weren’t taken from the women only, but from the families as a whole. I’m curious how many of these children are Warren Jeffs. Also, where were the toys or playground equipment in this compound? What kind of education do they get? The tour of the compound didn’t make me feel like these kids would be going back to a great place to be a kid. I know that many many children in America live in much worse conditions and don’t get taken away. However, that is another issue altogether. This group is like an American Taliban. Denying the basic rights of education and freedom all under the guise of “freedom of religion”.
I feel for the judge. There will be no winners here. It’s all very sad.

First, I would like to point out that a state finding ways to persecute a religious group is INEVITABLE if you allow bureaucrats and judges power. “Power corrupts, and absolute power corrupts absolutely.” – Lord Acton

To compare this religious group to an American Taliban seems very closed-minded. I am not Mormon, but live in Salt Lake City and have worked with with many LDS and a few FLDS people. The FLDS people I’ve known are extremely loving and more spiritually open than most regular LDS people I’ve known. That’s just my experience. LDS people seem religious. The FLDS people I’ve known seem spiritual.

The tendency to pre-judgment in this case seems unbelievably enormous, not only does nobody hear the FLDS side of the story, buta vast majority of minds seem locked shut to hearing the FLDS side of the story.

Being a strong advocate of separation of Church and State, I have mostly been worried about Religious interference becoming too prevalent in Federal and State issues. I am a bit surprised to find myself advocating the other way on this issue. I think the members of the FDLS are nutty as fruitcakes, but if they wish to believe and follow this religion, then it is none of my business.
The possiblity of child abuse ie. underage girls forced into polygamous marriage is disturbing, but it is also disturbing that the state can go into their ranch and remove children based on a supposed complaint by a young woman they haven’t even been able to find yet.
There have been all sorts of rumors floating around about maritial beds in the temple etc., which has not been proven. If there are forced marriages happening, then yes they should be dealt with legally, but the free practice of a religion, by adults and even of the children they are raising to follow the same believes is a constitutional right.
The first amendment is there to protect ALL religions, not just the so called mainstream ones

Well Cicero – I’m happy that all you needed was some dirt and sticks. You are right, lack of toys doesn’t mean abuse. However, that combined with the robotic “I saw nothing” “I know nothing” responses from the women on Larry King Live, gives a very poor impression of this loving atomosphere that they are trying to persuade exists. I live about an hour from Bountiful, BC another FLDS community. I couldn’t care less about polygamy as long as they are consenting adults. At least in Bountiful, the kids appear to play like normal kids (which sorry, doesn’t just mean with dirt and sticks). They don’t appear as extreme as this Texas compound seems to be. However, that really isn’t what this is about. It’s about statutory rape and actual abuse. It shouldn’t be rocket science to determine who the parents are and medical records / birth records hopefully exist to find out the ages of these girls. Lets just hope the whole truth comes out for both sides and that real justice is served quickly for these children. We have the responsibility as a society to protect children from abuse. If they are safe, then by all means, they should be allowed back to their families. Practicing religion, no matter how whacky it appears, is their choice. Abuse however, is not.

It wasn’t “lowered” to 14, that’s the age since sometime from the 1800’s from what I understand. There are qualifications though such as someone in a position of power (teacher, doctor etc etc) which would invalidate that consent so that even if she was 14, it would not be deemed to be consensual. There is pressure on the Gov’t to raise the age to 16.
In the case of the FLDS – certainly there would be a power issue that would mean a 14 year old could not be considered in a position to give consent. Bountiful (the FLDS community near where I live) has been under scrutiny for 14 and 15 year old girl “wives” and Winston Blackmore has said they don’t marry that young anymore there. Therefore, don’t make the assumption that in Canada it is fine for girls of 14 to be given in marriage. It’s not true.

I just saw the “Tom Green County Court House” in writing. Until then I just figured I had to be hearing it wrong. Makes you wonder how the FLDS decided on the site for their ranch–did they know what county it was in before they saw the papers at the closing?

Look at a county map of Texas–there are about a thousand counties, each just a few square miles in area. So it’s altogether possible that the FLDS had no idea when they bought it.